ESCAPING JUSTICE

So we’ve had the Respect@Work: Sexual Harrassment National Inquiry Report (2020) and for over a year, Attorney General Porter has done absolutely nothing to implement any of the recommendations.

We’ve had thousands of women (and a few men) march in our streets in anger, frustration and desperation in the earnest hope that those same streets will still be as safe when they are walking them alone or at night.

We’ve had a prime minister and a government who were just too busy to spend any of their precious time listening to the people who gave them their jobs and who pay their substantial salaries.

So forgive me if I suggest that history does not indicate that things are inexorably about to change. Holding up banners has never been a failsafe strategy to bring about change, especially change that seems to be something of a nuisance to a busy prime minister. However, being as generous as we can, let’s say something does change. That during their coffee breaks our politicians actually consider and act upon the demands made by thousands of Australians across our nation.

What then?

Does anyone propose that those who have been inclined to dismiss, abuse, disrespect, physically and sexually attack women will somehow undergo a metamorphosis? Does our record as a species not suggest that violence is endemic to our DNA and that things are more likely to stay basically the same than they are to change – at least in the short term?

If that outlook proves to be accurate, as pessimistic and as ostensibly defeatist as it may seem, what is to be done?

On the assumption that first, we have to do everything we can as a society to change the way women are treated and second, that it is unlikely that significant change will occur given the current political climate, should we not look at what we do and how we handle such attacks when (not if) they occur?

Should we not ask whether our criminal justice system actually serves the aims of a community that is desperately trying to rid itself of this societal scourge? 

And would anyone dare to contest the answer – ‘No, it doesn’t!’

In the great majority of criminal jury trials, despite being directed in scant terms by the presiding judge as to the meaning of ‘beyond reasonable doubt’, the jury after retiring to consider their verdict, almost inevitably return to court to ask for a further explanation as to just exactly what that phrase means.

Then an even more predictable event occurs. The trial judge tells them that he or she is not permitted to try to define that for them and that they must just toddle off and “use their common sense”. So twelve people not only have to make the most difficult legal (not factual) decision with little or no help, but they have to agree amongst themselves as to what beyond reasonable doubt means. Try getting twelve of your friends to agree on the definition of anything to see how difficult, if not impossible this task is.

Yet this is the task that we require of our juries. It is one, but just one, of the reasons why the conviction rate in rape trials is so low. But the conviction rate is the end of the process. The beginning relates to the number of rapes that are reported to the police.

While the figures across Australian states vary, the figures for NSW are instructive.

In NSW recent figures suggest that only between 9 per cent and 14 per cent of sex related crimes are reported to the police. The data shows there were 52,396 sexual assault incidents reported in NSW in the 10 years from January 2009 to December 2018. What this therefore means is that approximately 530,00 sexual assault incidents were NOT reported to the police.

Of the 9 per cent to 14 per cent of offences that were reported –

• 7,629 (15%) defendants appeared in court on sexual assault charges
• of those 2,308 (30% of those appearing in court) were not disposed of by a jury verdict
• 1,700 (22%) had the charges dropped by the prosecution
• 362 (5%) were dismissed for reasons relating to the accused’s mental illness
• 246 (3%) were “otherwise disposed of”
• and of the remaining 3,827 defendants 2,552 (33%) pleaded guilty
• 1,275 (17%) were found guilty by a jury while
• 1,482 (19%) were acquitted.

For the sake of argument, let us generously assume that of the 530,000 sexual offences not reported that half of the alleged perpetrators were innocent. That means that 265,000 sexual offences have gone unreported and unpunished – in one State alone!

In the U.K. similarly disturbing figures are reported.

The factors discouraging victims from reporting sex related offences and then from being willing to testify in court, are well documented. Victims are often left with the impression that they are disbelieved, or that it was somehow their fault or that it would be far too difficult to investigate on their behalf.

For those who are strong enough to conquer these hurdles the ordeal of the trial, the often brutal cross examination, the publicity and the shame await them. The best that they can hope for (on the NSW figures) is a 19% chance that the jury will believe them. It is in fact a wonder that any woman chooses to proceed to a trial at all.

On any dispassionate analysis, the current system is manifestly failing our women and is likewise failing our society. It is simply unarguable that it doesn’t work well enough and has done absolutely nothing to curb the epidemic of this social evil. Radical change must come and official inquiries and recommendations however well-meaning, are not now or ever, going to be enough.

Yet from the regular outrage expressed after an acquittal at trial, there is a widespread naivety abroad that suggests that the public believe that our criminal justice system is designed to extract the truth about a situation and that the trial system ensures that truth will out.

In fact, truth comes a very poor second behind form and procedure. A man who admits to police that he raped or murdered or committed any other serious offence will be acquitted despite his admission, if that admission was not preceded by the police reciting a set formula of words in their interview of him. These rules of exclusion, while not followed in most advanced European jurisdictions, prevent our juries from hearing evidence regarded as too prejudicial to the accused as it is considered that the jury is totally incapable of properly weighing the true relevance of that evidence.

And then despite the systemic legal constraints, when a jury finally gets to consider the evidence presented, the apparently indefinable “beyond reasonable doubt” confronts them. Is there any question that the 80% acquittal rate by juries is directly related to the lack of clarity in the instructions that they are given in their task of reaching a unanimous verdict?

The reality is that in almost all cases where two people tell conflicting stories convincingly, each story necessarily casts some reasonable doubt on the other. The result is that almost inevitably the outcome is an acquittal.

Even the ethics of the legal profession require the advocate to strive for the best result possible for the accused. This is so even if, in the lawyer’s own assessment, the evidence proves the case against his client. For our system is an adversarial system. It enables and indeed often requires advocates to be aggressive and unrelenting, not at all with the object of getting to the truth but with a view to destroying the credibility of the witness.

We have long been familiar with the creation of specialised courts exercising special jurisdictions to meet societal and legal needs. If ever there was an area of special need it is the trial of sex related offences. We are also well familiar with the use of other formulations of the standard of proof – on the balance of probabilities, the preponderance of the evidence or simply “are you sure?”

To restore the confidence of the community and hopefully the safety of all females, we should simplify and de-weaponise the way rape trials are conducted. For a start, it is pointless insisting on a standard of proof of beyond reasonable doubt which most people and certainly most juries simply do not understand while at the same time producing conviction rates which are a disgrace and an embarrassment to civil society.

Changing the standard of proof would not only underline society’s intolerance for gender-based violence, but would go a long way towards reducing false acquittals in these cases.

We have long used the standards of “on the balance of probabilities” and “on the preponderance of the evidence” in other areas of the law which do not require an absence of doubt but call upon the jury to determine after hearing all of the evidence, what they believe most strongly.

The outcry from the defence Bar can be easily anticipated. It is after all a significant moving of the goal posts. However, it is suggested that the results of what we have seen with the current system are so bad, so one-sided and so unacceptable that such a significant change is not only justifiable but that without it, we are simply condemning ourselves to more of the same, as unacceptable as that surely is. In short, the price paid is well worth the protection of our civil society.

Perhaps to balance or ameliorate any perceived concession allowed to the prosecution, the risks to the accused can be alleviated. The penalty provided for a conviction for rape is typically life imprisonment. Ignoring the fact that this penalty is rarely if ever imposed, no matter what penalty is imposed the victim is rarely content that the punishment is sufficient or fits the crime committed.

Yet many victims of crime have as their main concern, the fact that a conviction will mean that she has been believed, that her taking the perilous step of going through the whole legal process has been vindicated. The actual details of the penalty are often, although not always, of less concern.

The reality is that few accused of rape ever plead guilty when they are facing a possible, although unlikely, sentence of life imprisonment. In any case, why would you plead guilty given you’ve got an almost 80-90% chance of acquittal?

If the penalties for rape were lowered, those accused may well be willing to plead guilty, not only because the maximum penalty was lower, but because additional discounts could be given in return for the guilty plea. The victim would still be vindicated and the perpetrator could be rewarded for his attitude.

It is recognised that our legal system is well entrenched and has been with us since Australia was founded. It is also recognised that the legal profession is the quintessential conservative profession that eschews change, especially radical change.

But equally it must be recognised that our inherited system has failed us, particularly our women, miserably. If women continue to be treated as people who deserve a much harsher road to justice than our men, then we as a society will continue to be diminished. We have to confront the question – which is worth more to us and worthy of retention, maintaining a system that is venerated by tradition yet is demonstrably unjust or ensuring that the human rights which we all claim are not distributed according to gender?

This is not the time to argue about sensibilities. It is the time to act.

Is there a leader in the House?